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NLRB Quickie Elections Coming Quickly?

Date:

11.21.2011

The National Labor Relations Board has announced it will vote on proposed amendments to the agency's union representation election procedures—known as the "Quickie Election" rule—on November 30, 2011. The Board’s Notice of Proposed Rulemaking regarding the “quickie election” rule, published this past June, includes significant potential changes to the current union election process.

According to the NLRB's November 18th press release, the public may be seen but will not be heard when Board members cast their votes on the June 2011 Notice of Proposed Rulemaking at the end of the month: "The [November 30, 2011] meeting of the Board’s three members, to be held at NLRB headquarters in Washington, will be open to the public, although the public may not participate.” At this meeting, members will "discuss and vote on a resolution to accept the [proposed changes], proceed to draft a final rule limited to [the accepted changes], and defer the remainder of the proposed rule for further consideration." It is not yet clear which proposals the Board will vote on during this November 30, 2011 meeting and which ones it will defer for later consideration.

Member Hayes’s Letter to House of Representatives Critical of Board’s Actions

Meanwhile, also on November 18, 2011, Member Brian E. Hayes, the lone Republican on the Board, wrote to the Chairman of the House of Representatives' Education and the Workforce Committee, John Kline (R-MN), reprising his dissent to the June Notice of Proposed Rulemaking, in which he "criticized the majority's use of 'a rulemaking process that is opaque, exclusionary, and adversarial....'" You may view Member Hayes’s letter at http://edworkforce.house.gov/UploadedFiles/Letter_to_Chairman_Kline.pdf.

Specifically, Member Hayes noted, "[t]hat criticism apparently made no impression on my colleagues, who have continued this process in the same manner, and without my participation; and, who have now made it unequivocally clear that they intend to publish a final rule before the expiration of Member Becker's appointment without regard to Board tradition or rule."

The Board's sudden action pertaining to the Notice of Proposed Rulemaking is attributed, at least in part, to the fear that the Board will lose its quorum at the end of this year when Member Becker's term expires. Only Chairman Mark Pearce and Member Hayes will remain as members of an agency created for five members and which the Supreme Court held in 2010 must have three members to decide cases. Member Hayes's letter also criticized the decision made by Chairman Pearce and Member Becker to disregard Board precedent and vote on sweeping changes to the Board's election processes without the affirmative vote of three sitting Board members.

Member Hayes's letter also reported that, earlier this week, his two colleagues offered him a compromise proposal. The compromise, he said, still served as “an unprecedented ‘emergency’ revision of the ordinary internal rules for processing all pending cases from now until the end of Member Becker’s term. In effect, the ‘emergency’ procedures would deprive me of any meaningful opportunity to consider the majority position, much less prepare a response, in any number of cases." Member Hayes reproached that "[t]his process, or, more accurately, lack of process, is so diametrically at odds with traditional decisional processes of the Board that it quite frankly defies description."

Member Hayes's letter brought to light the fact that because a number of Board staff members had been assigned to work on the rulemaking, there “had [been] a serious adverse impact on the Board’s ability to process pending unfair labor practice and representation cases.” He cited the Board’s decreased productivity in the number of final decisions the Board rendered in September and October 2011.

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As Jackson Lewis LLP has previously reported, the June 2011 Notice of Proposed Rulemaking included the following potential changes to the current election process:

Accelerating the initial hearing date following the filing of a representation petition;

Mandating expansive pre-hearing discovery of issues;

Significantly curtailing the ability to litigate issues before an election;

Eliminating the right to file post-hearing briefs;

Barring pre-election requests to review regional decisions;

Requiring lists of eligible voters be filed within only two days; and

Providing unions with voters’ phone numbers and e-mail addresses.

Approximately 95 percent of all representation elections are held in 56 days. The new procedures, if adopted, could reduce this period by at least 30 days. It appears elections could be held in slightly over three weeks (or possibly less) from the date an election petition is filed with the Board.

The Board received over 65,000 written comments in response to its proposed rulemaking, including comments submitted by Jackson Lewis LLP on behalf of several industry and professional associations. In July 2011, the Board held a two-day public hearing in which 66 speakers testified, including Jackson Lewis D.C. Region Partner, Harold Weinrich. For more information about this hearing, please see our article, Comments to NLRB’s Proposal to Amend Union Elections Procedures. In addition, this past July, the House Education and The Workforce Committee held a hearing on “Rushing Union Elections: Protecting the Interests of Big Labor at the Expense of Workers’ Free Choice.” Michael Lotito, a Partner in Jackson Lewis' San Francisco office, testified before the Committee. For more information, please see our article, Congressional Hearing on NLRB’s Proposal to Rush Union Elections.

Jackson Lewis LLP will follow the Board's rulemaking proceedings closely. If you have any questions regarding the impact of this proposed rule on your organization, please do not hesitate to contact one of the attorneys listed or the Jackson Lewis attorney with whom you work.